Elara Inv. v Gumbi (HH 86 of 2016; MC 12258 of 2013) [2016] ZWHHC 86 (28 January 2016)

1 HH 86-16 MC 12258/13 ELARA INVESTIMENTS versus JAMES GUMBI HIGH COURT O ZIMBABWE CHIWESHE JP & NDEWERE J HARARE, 19 May 2015 & 28 January 2016 Civil Appeal C. Venturas, for the plaintiff R. Bwanana, for the respondent NDEWERE J: On 9 June, 2013, the appellant, who was the plaintiff in the court a quo issued summons in the magistrates court for payment of $15 000.00, interest and costs of suit by the respondent, who was the defendant in the court a quo. The defendant filed a plea on 19 November, 2013. Thereafter, the parties filed a joint PTC minute and agreed that the issues were whether the plaintiff lent $15 000 to the defendant and whether or not the acknowledgement of debt was authentic. The plaintiff called its first witness, one Rafig Hallan. He confirmed that the plaintiff was a registered company and that he was one of the Directors. It is common cause that he did not produce any authority to represent the company. Rafig was the only witness for the plaintiff. He simply repeated what was alleged in the summons and did not shed any further light on the issue. The defendant testified in his defence. He denied signing any acknowledgment of debt and he denied borrowing any money. He disputed the signature on the acknowledgement of debt. Another witness Colleen Maorera was also called as a witness for the defendant. She denied any knowledge of an acknowledgement of debt allegedly signed by the defendant. On 24 March, 2014, the magistrate dismissed the plaintiff’s claim, saying the evidence available was not sufficient to prove the claim. HH 86-16 MC 12258/13 On 29 April, 2014, the appellant filed a notice of appeal against the entire judgment of the magistrate. The grounds of appeal were as follows: 1. The court a quo misdirected itself in placing the onus on the appellant to prove the acknowledgment of debt was genuine. 2. The court a quo erred in finding that the acknowledgment of debt was not genuine in the circumstances. 3. The court a quo erred in finding that the appellant should have called a handwriting expert. 4. The court a quo erred in placing any reliance on the evidence of Colleen Maorera. The relief it sought was that the appeal be allowed with costs and the court a quo’s decision set aside. As the appeal court, we find no misdirection at all on the part of the magistrate in the court a quo. The plaintiff alleged he lent money to the defendant. The moment the defendant denied this, the onus to prove that such moneys were lent was on the plaintiff. The plaintiff knew as far back as 19 November, 2013, when the defendant filed his plea, that the defendant was denying the debt and denying signing any acknowledgment of debt. In fact in para 6 of his plea on the merits, the defendant stated the following: “6 Defendant will further plead that the plaintiff attempted to forge his signatures and will call witnesses to augment his defence. Defendant puts plaintiff to strict proof that he signed”. This paragraph was a forewarning to the plaintiff to provide proof on the authenticity of the signature on the acknowledgment of debt, yet despite such forewarning, the plaintiff did not provide any proof that indeed the defendant had signed the alleged acknowledgment of debt. He actually confused matters further by providing a copy of the acknowledgment of debt which was said to be different from what had been attached to the summons. The one allegedly attached to the summons was not in the court record and the defendant categorically denied the signature on the copy which the plaintiff’s representative produced during the trial. How could the court accept the acknowledgment of debt as authentic under such circumstances? This is a typical case of a plaintiff who failed to adduce enough evidence to prove his claim and the magistrate cannot be faulted for dismissing the plaintiff’s claim. HH 86-16 MC 12258/13 The cases referred to by the defendant in his closing address at the trial on p 96 of the record emphasise the need for proof of authenticity of documents. In U-Freight Euromar (Pvt) Ltd v Mutebuka HH 5/03 on p 5 of the cyclostyled judgment the court stated as follows: “Firstly, I shall deal with the documentary evidence produced by the plaintiff. While copies of the documents were admitted into evidence with the consent of the defendant, they were not proven. It is the law relating to the proof of documents that are not public documents that their authenticity must be proven. The authors Hoffman & Zefferth observe that evidence is normally required to satisfy the court as to the authenticity of any tendered document”. The above position of the law obtains in this case. Evidence was required to prove the authenticity of the acknowledgement of debt. The plaintiff did not provide the evidence. The appeal, having no merit, is dismissed with costs. Venturas & Samkange, appellant’s legal practitioners Lawman Chimuriwo Attorneys, respondent’s legal practitioners